The Decline of Coverture

Most discussions of coverture that I read mentioned that the doctrine was gradually watered down throughout the 19th-century. Since I couldn't easily find legal details, I decided to take the harder road and offer a qualified libertarian defense of coverture. According to my friend and co-author law professor Ilya Somin, though, by 1880 coverture was already basically dead. So even if you don't buy any of my main arguments, my conclusion about women's liberty during the Gilded Age still holds. Reprinted with permission from an email he sent me:

BTW, regarding your post on women in 1880, by that time couverture had largely been abolished in the US, and most states had enacted married women's property laws which enabled them to own property independent of their husbands. I wrote about this here.

Where women circa 1880 WERE unfree from a libertarian point of view was with respect to occupational freedom. Many states had laws forbidding women from becoming doctors, lawyers, etc., and the Supreme court said that such laws were constitutional in 1873. However, as a practical matter, these laws might have constrained the options of only a small minority of women, as they applied primarily to professional occupations that very few women (and not many more men) could acquire the educational credentials for at the time. In the late 19th and early 20th century, many states also began to enact maximum hours and other occupational restrictions that constrained women in working class jobs, but I don't think there were yet many such laws in 1880.

Update: Ilya asked me to append the following qualification:

The e-mail that Bryan quotes was written in haste and not as clear as it should have been. I meant to say that, by 1880, most if not all states had abolished coverture in so far as it prevented married women from owning property and entering into contracts independently of their husbands. These were by far the most important elements of coverture from the standpoint of restricting libertarian freedom. Some other aspects of coverture persisted on into the 20th century (for example limits on the ability of spouses to sue each other for torts), with considerable variation between states.

Comments and Sharing

I havent read through all your posts, so Im not sure if my point has been addressed or not. Im wondering if you have considered whether previous (pre-1880) laws and social conventions made it so women felt like they had no recourse when their (libertarian) rights were violated (authorities would not hear their complaints, etc.). If this was the case, how would that affect your outlook?

It may go a little too far to say that it was "basically dead" by 1880. Some elements (e.g. - limits on the ability of spouses to use each other) persisted into the 20th century. However, the parts that may be considered important from a libertarian point of view (married women's rights to own property and contract independently of their husbands) had been abolished in the vast majority of states by 1880.

It may go a little too far to say that it was "basically dead" by 1880. Some elements (e.g. - limits on the ability of spouses to sue each other) persisted into the 20th century. However, the parts that may be considered important from a libertarian point of view (married women's rights to own property and contract independently of their husbands) had been abolished in the vast majority of states by 1880.

MikeDC - I couldn't let that one pass. Tuition at college is 15 times what it was 35 years ago; probably 100 times what it was in the late nineteenth century, when an education at a land grant college was nearly free, and was open to women at most state schools. Even with scholarship aid and loans, it is more expensive to attend college now. Moreover, ex-students wind up spending a substantial part of their careers paying back student loans. No, there is no greater access to higher education today through "subsidized (higher) education."

Ak Mike - I'm not sure you're wrong here, but I'm not sure you're right either. We need to separate the absolute price changes from the relative price changes. A haircut is probably 100 times what it cost in 1880 too.

Saying people incur lots of debt to attend college today doesn't count against it, it's evidence the true cost is worth it. People voluntarily pay out the nose for a college education. In 1880, by your argument, you couldn't give it away.

I actually suspect, despite the low fees, the opportunity cost of going to college in 1880 was much higher relative to today. Further, the discussion of land grant colleges is a little odd, since isn't a government grant of land and resources to pay faculty salaries just another form of subsidy?

Anyway, it was subsidized then and subsidized now. My question is whether the system itself allowed more freedom for the average person then vs. now. In talking about land grants, I can't speak for all of them, of course, but I know a little about MSU's history, and I know its initial curriculum was extremely tailored to agriculture and engineering purposes. It didn't, for instance, even offer the courses in Greek and Latin generally necessary to become a doctor.

So, by offering more subsidized education, I'm still forced to conclude we've increased our freedom to enter into a variety of professions that would have been inaccessible to the average person back then.

Somewhat similar to a fig leaf covering the front-side; “coverture” has covered the libertarian backside about “freedom”. That “the law is an ass”, made by Man, specifically refers to coverture from Dicken’s Oliver Twist.

Now, if you count up the details that lack “libertarian freedom” in our complicated society for sure it is far less than the simpler society back whenever. With no depth perception, no separation of principles from details, this is flat earth theorizing with a bird’s eye view quantifying bits of data. The principle(s) of “libertarian freedom” must be qualified first and “free will” foremost. The flawed factual assumption about Woman is revealing.

So, take the half-assed cover away, hold your nose, add depth perception and look up the… - people for libertarians could be property and ideally should be due to human nature. Women, children, serfs and slaves could be property of men with “free will” supposedly cuz men can be above and beyond nature.

Why? Well, my take on libertarian free will sees choices as a freedom from any predetermination of a god and no determination by nature. It means completely uncaused; thereby, allows choices. If choices are caused, its not free will, as one could not do otherwise in the libertarian absolutist view. Since Man assumed children, women, serfs and slaves are determined by nature, they should, ideally, be paternal property of those who have “free will”. This was, in essence, Aristotle’s argument that justified slavery. This will was (and still unconsciously?) an individual, communal and cultural movement of domination: a form of absolute hierarchal socialization in society.

And, back to my initial post on this topic, repeated here with a [ideally] qualification:
“[Ideally] Can a person as a "who" be property to be marketed; are people free to become another’s property, at liberty to sell self in a market?
For American libertarian economists it seems “freedom” [ideally] refers to positive law contracts of property that can be freely exchanged in a market for money or some property worthy of exchange.
Prophet Muhammed had 11 wives. The last time he was in the market for a wife he struck a deal with the father of Aisah. When their marriage was consummated she was 9, which was allowed within Bedouin law. Was the Prophet exercising a libertarian freedom?”

Evidently, yes!

But, that position is held tentatively. Error in reasoning or with new evidence to enlighten me I'll gladly discard some or all of it. That’s liberal free will.

I still do not buy the voting claim. While you write from the POV of the individual, what you are missing is that a whole class was not allowed to vote. !880 was not that long after the Civil War, so IIRC, there were still a lot more women than men. The majority of people of voting age were not able to vote. If libertarians and conservatives are worried that a minority of people paying income tax are able to vote tax increases for those who do, why would it not also be a valid concern of women in 1880 that men would vote for policies they did not want?

Just to clarify the point of the arguments about coverture that I, at least, was making. You say:

So even if you don't buy any of my main arguments, my conclusion about women's liberty during the Gilded Age still holds.

No, it really doesn't. The problem is that your arguments about coverture - and marital rape - fatally undermine your definition of "liberty" and therefore the validity of your conclusions about the presence or absence of liberty in any period.

Your original argument was that

(a) coverture in its original form was consistent with the liberty of married women; and

(b) the absence of any legal prohibition on marital rape was consistent with the liberty of married women.

I assume you'd make the same arguments about the whole complex of legal prohibitions on the rights of married women, and the absence of legal restraints of violence against them, that used to exist in common law jurisdictions (including the United States) until their removal at various points in the 19th and 20th centuries. Similar laws still, of course, exist in many cultures throughout the world.

The general implication seems to be that "liberty" does not require any kind of state protection against acts of violence against the person or any guaranteed capacity to contract or deal with property. It's enough if acts of violence are socially unlikely and some financial autonomy is socially permitted. And if the state doesn't tax your husband too heavily.

That's a pretty difficult thesis to defend on standard liberal grounds. Particularly if you look at its implications for the kinds of issues modern liberals in, say, Pakistan or Saudi Arabia ought to be concerned about. Your view would imply that it'd be better to focus on tax and regulation in those societies rather than such trivialities as the letter of the law on marital rape or female ownership of property.

So my problem with your arguments about coverture, among other things, is a problem with the wider political implications of your theory of liberty. I wasn't disagreeing with the detailed conclusions of your evaluation of the position in one particular year (1880); that doesn't strike me as a particularly interesting question anyway, because its boundaries are so narrow and seem to be extremely arbitrary. I was disagreeing with the standards of evaluation implicit in your conclusions. That hasn't changed.

As late as 1957, "Texas law provided that a married woman could not bind her separate property unless she had first obtained a court decree removing her disability to contract." Such a decree could only be obtained with the consent of the husband.

This series of post continues to blatantly disregard the degree to which a woman in the Gilded Age lacked protection from force and coercion. What good does it do to say marriage is voluntary if state officials turn a blind eye to a father who beats his daughter if she refuses a marriage or a husband who beats his wife if she threatens divorce?

How can you say that "[h]owever much marital rape impinged women's freedom in 1880, there's little reason to think it impinges it less in 2010," when 1) marital rape was not a crime then but it is now, and 2) men today are not inculcated with the expectation that their wives have no right to refuse them sex? The expected consequences then and now are incredibly different. A woman raped by her husband today can obtain a relatively easy divorce and has an excellent chance of obtaining custody of her children. Marital rape would not have been considered grounds for divorce in the 19th c. and a woman could have been kept from her children by their rapist father.

How can you say that married women were free if they were forcibly prevented by the state from hearing about or purchasing contraceptive technologies that might have prevented the sex that they had no legal right to refuse from leading to unwanted and dangerous pregnancies? Is a woman really free if her husband could compel her to endanger her life to satisfy his personal desires? What good is it to be able to open a business if your husband can veto all your contracts and keep you pregnant all the time?

Obviously you're just doubling down on this lunatic proposition, despite getting significant pushback from many directions. But at least pretend to consider the consequences of a Gilded Age legal regime for the many women whose family life was not happy.

Amber, given that the changes in marital rape law are recent and were accomplished over a couple of decades, with each jurisdiction adoptings the reform at a different time, I'm guessing your confidence on meaningfulness of the crime of marital rape comes from an examination of the results of those changes? Is there something in the literature we should familiarize ourselves with? There's a natural experiment here, and surely someone has done the work.

What does this even mean? Are you trying to say that women 150 years ago would not have been fazed by nonconsensual intercourse, whether forcible or non-forcible? Are you suggesting that those women were indifferent to the number of times they were pregnant or the number of children they had or were capable of precluding their husbands from forcing them to bear more children? Is your ideal evidence some sort of state by state analysis, with women asked to rate their rape trauma from 1 to 10, accounting for the legal or illegal status of marital rape in their jurisdiction at the time?

A commenter on this post at Will Wilkinson's blog provided details on Roman and Jewish legal traditions that indicate that the concept of marital rape is very old, even if US states did not recognize it until recently. People a thousand years ago were capable of recognizing that a free woman should not be "like a captive, to be subjected to intercourse with one who is hateful to her." The idea that a woman in the Gilded Age who was forcibly raped every night by her husband would not have found that violation "meaningful" is intellectually and morally bankrupt.

I agree that the these laws started to degrade over time, but that is very far from making the late 19th century a libertarian paradise for women or minorities, and certainly not a model we should hearken back to.

As late as 1873, in Bradwell v. Illinois, the Supreme Court upheld an Illinois court ruling that women were not allowed to practice law because there had never been a female lawyer in English or Illinois history before (and despite the fact that there was no statute or other law forbidding it and no indication that the legislation was even opposed in principle).

Concurring with that judgment, Justice Bradley famously added:

"[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband."

The law, in this case, restricted Myra Bradwell's liberty on the theory that a woman's liberty to become a lawyer needed to be *affirmatively* permitted by law, or else it was forbidden. Further, the attitude of a highly educated and presumably thoughtful jurist suggested that any woman seeking to stray form the domestic sphere was violating precepts laid down by *nature.*

That's not the kind of liberty I want to for myself, and I think it is undeniable that it would not stand today, so I don't see why the attitudes prevalent at the time should be held up as much of an example.

Even if we were to decide that the law did not have many affirmatively stated restrictions, social pressures (which can be likened to "customary law") was clearly pretty harsh, and occasionally, as in Bradwell, enforced through traditional legal channels rather than just through horizontal enforcement.

Is coverture such a big deal? How many married women own property separately from their husband nowadays? If they do, how many do it who aren't rich enough that they could do it via some kind of trust arrangement, as has always been possible and was common among rich people when coverture was the law?

Also, how different is coverture from the divorce law we have nowadays, which gives both spouses rights to property earned by the other? Aren't they similar restrictions on liberty? If anything, people should be arguing that men are oppressed under current law, since they earn most family income yet don't have 100% control of it as the default rule, as they would in a libertarian version of marriage.

How many married women own property separately from their husband nowadays?

First, this is a completely baffling question. Surely, if you live in a modern Western country, you must have met a married woman or two who owned her own car, her own clothes and shoes and degree certificate, and perhaps even had a bank account in her own name? None of these things were possible under the doctrine of coverture. Nothing a married woman purchased or used or even made belonged to her. That's the point. I don't think you can really believe that the majority of married women in the Western world live under those conditions nowadays.

Secondly, you're misunderstanding what coverture is about if you think the opposite concept is "separate ownership". Coverture isn't co-ownership. A married woman who owns property jointly with her husband, nowadays, has the same rights as he does in that property. If they have a shared bank account, she can draw on it and so can he. If they have joint title to the house in which they live, she can't sell it without his consent but he can't sell it without hers either. By contrast, under the coverture system, sole ownership of all property was vested in the husband. He had full rights of control (in the absence of a trust) and she had none. So even you're right that the majority of married women nowadays co-own their cars, shoes, shares, bank accounts and houses, that still gives them more control of property than coverture did.

I don't know very much about American divorce law, which I believe differs greatly from state to state, so I can't comment on how much it oppresses men. But I think it's incredibly unlikely that it creates an incursion into liberty as huge as that created by the doctrine of coverture.

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